Humor and Social Media at SCOTUS

POSTED ON June 16, 2017

SCOTUS contemplating a constitutional right to tweet. (Reuters)

By Gayle O’Connor – On March 03, 2017, oral arguments began before the US Supreme Court in the case of Packingham v. North Carolina. This case concerns the issue surrounding the denial to Mr. Packingham of online access to social media sites by the state of North Carolina. Most people would think a case challenging a state law limiting individual social media access for violating freedom of speech as guaranteed by the First Amendment of the US Constitution is a no brainer. And certainly at first the justices all seemed to be leaning toward the position that access to social media is worthy of constitutional protection.

During oral arguments, the discussion touched on the distinction between Snapchat and Twitter, and what exactly constitutes an online profile. If this argument would have been heard even 20 years ago, it would have seemed like gibberish.

Justice Samuel Alito wasn’t quite so enamored with the idea of social media and in a wisecrack said, “Now, I know there are people who think that life is not possible without Twitter and Facebook and these things, and that 2003 was the dark ages.” He obviously wonders if all this newfangled social media is really necessary.

On the other side of the fence sits Justice Anthony Kennedy. He stated, “Well, it seems to me that the sites… and their utility and extent of their coverage are greater than the communication you could ever have, even in the paradigm of public square.”

Even Justice Elena Kagen stated that “Everybody is on Twitter,” referring to individuals in the government sector such as senators, governors. And of course, even the President himself is a regular Tweeter.

So, the question before the court seemed quite simple: they must decide if the First Amendment right to freedom of speech extends to the internet, and if so, to what extent the government can limit an individual’s online access. Simple, right? Well not if the individual in question is a sex offender who spent time in prison for statutory rape and must register as such for life on the state web site.

Ahhhh, now it gets interesting, right? That’s correct, Packingham is a registered sex offender.North Carolina statute § 14-202.5 allows the state to “Ban use of commercial social networking Web sites by sex offenders.” However, the law has proven difficult to interpret. The state often makes murky distinctions, restricting only sites with certain types of user profiles linking to other users. For example, no to Twitter but yes to the entire New York Times, including personal ads.

This distinction bothered justice Sonia Sotomayor, who displayed a print-out of the online newspaper showing users commenting and displaying profile pictures and asked how this differed from other sites. The attorney representing the state said that Facebook will reveal whether a kid likes puppies and has divorced parents, while a newspaper user profile or even school websites—which are legally accessible to sex offenders under the challenged law—won’t provide these personal details.

Justice Ruth Bader Ginsberg said, “Even if the New York Times is not included, the point is that these people are being cut off from a very large part of the marketplace of ideas. And the First Amendment includes not only the right to speak, but the right to receive information. “

Lots to think about. The decision is not out yet but If you’re interested in reading the oral argument, you can find it here. I’ll be sure to follow up and let you know the SCOTUS decision … on Facebook and Twitter.

Breaking News: It is well established that, as a general rule, the Government “may not suppress lawful speech as the means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition, 535 U. S., at 255. That is what North Carolina has done here. Its law must be held invalid. The judgment of the North Carolina Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Opinion written by Justice Kennedy

Gayle O’Connor is a legal technology consultant with 30 years’ experience specializing in legal marketing, particularly social media, blogs, and websites. She is currently working as the Marketing Manager at Social Evidence, a cloud-based application designed to discover, organize, analyze, and authenticate specific social media evidence. Gayle was previously the Marketing Manager at Degan, Blanchard and Nash, a large law firm located in New Orleans. Gayle is also a former trial technician for the federal public defenders, a marketing director for numerous legal software providers and has taught legal research at law schools. Additionally, she has been a featured speaker at American Lawyer Media LegalTech Events, ABA TECHSHOW, Online World, Special Libraries Association, Washington State Paralegal Association, National Business Institute, ABA Litigation Section Meetings, local Bar Associations throughout the U.S., and international organizations such as the Law Society of British Columbia and the New Zealand Law Society. She can be reached at gayle.oconnor@social-evidence.com, www.social-evidence.com or @gaylemoconnor.

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